SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-3305-SR
DATE: 20151020
RE: John Tavares v. Patrick Roy Tai-Pow and Marion Whittaker
BEFORE: SPROAT, J.
COUNSEL:
Orlando Santos, Counsel for the Plaintiff
Patrick Roy Tai-Pow, in person
Marion Whittaker, in person
ENDORSEMENT
[1] This is a motion for judgment on a $35,000 loan secured by a second mortgage.
[2] The defendants entered into an agreement to sell the subject property and it initially appeared to them that there was enough equity to pay the mortgages and other liens. It turned out, however, that there were insufficient funds to discharge the liens.
[3] The defendants allege an oral agreement whereby the plaintiff would discharge the second mortgage on the following terms:
(a) The plaintiff would be paid $20,000 on closing; and
(b) Mr. Tai-Pow would pay $15,000 in instalments. There was no reference to this amount being secured or to the amount of the instalment payments.
[4] The defendants allege that by reneging on this agreement the deal did not close and they suffered damages when the property was later sold for a far lesser amount. Thus, while they admit the mortgage debt they argue that their damages exceed the mortgage debt.
[5] Mr. Tai-Pow was cogent and articulate in making his submissions. Ms. Whittaker was described by him as a teacher. She adopted his submissions.
[6] When questioned as to how it made sense that the plaintiff would effectively agree to release Ms. Whittaker from liability, Mr. Tai-Pow orally suggested that this was an error in the joint affidavit made by the defendants. Given that the defendants seem intelligent, and the central importance of the alleged oral agreement, I think it more likely that claiming that only Mr. Tai-Pow was liable was deliberate. The evidence is that Ms. Whittaker has assets and Mr. Tai-Pow does not. When the improbability of the plaintiff releasing Ms. Whittaker was pointed out it became expedient to claim error.
[7] First, on the basis of the affidavit filed by the defendants I find that that the alleged oral agreement lacked any agreed instalment amount. As such it lacked certainty and was, therefore, unenforceable. That itself is a sufficient ground to grant judgment and dismiss the counterclaim.
[8] Secondly, while I am cognizant of the limited jurisdiction to judge credibility on a motion, the suggestion that the plaintiff has a fully secured second mortgagee, would agree to release Ms. Whittaker from responsibility, and rely on Mr. Tai-Pow to make payment over many years, makes no sense.
[9] The obligation of the defendants is to put forward all the evidence that supports their position. This is sometimes referred to as an obligation “to put your best foot forward.”
[10] The evidence of the oral agreement is also extremely vague. There are no details as to time or place. Mr. Tai-Pow had a real estate lawyer who presumably knew the deal could not close without the plaintiff’s agreement to this alleged deal. There is not, however, a scrap of paper indicating that their lawyer wrote to the plaintiff to arrange for an agreement to be signed or at least to confirm that the alleged oral agreement to discharge the second mortgage would be implemented. Instead Mr. Tai-Pow says he went to Mr. DaSilva’s office the day of closing expecting to pick up an agreement. This makes no sense. A competent lawyer retained to act on a sale would ensure in advance of the closing date that any and all encumbrances can and will be discharged.
[11] I conclude in accordance with the principles in Hryniak that there is no genuine issue requiring a trial of the issue of whether there was an oral agreement. On the affidavit evidence filed, I find that the evidence of the oral agreement is so vague and so improbable that it could not possibly be accepted when set against the plaintiff’s denial of the agreement and the cogent business reasons he gives for why he would never have agreed to the terms alleged. I, therefore, find that there was no oral agreement.
[12] Further, even if there was an oral agreement as alleged, the material filed indicates that there would still have been a shortfall on closing. There is no evidence that the defendants were in a position to provide their lawyer with the additional funds required to discharge all of the liens so that the sale could close.
[13] As such, it was not the alleged breach of the oral agreement, but a lack of funds on the part of the defendants that caused the inability to complete the sale.
[14] As such I order that:
The plaintiff have judgment against the defendants for $48,474.59, plus interest at 14 percent from April 30 to October 20, 2015.
The counterclaim is dismissed.
Copeland, McKenna shall release amounts, held in trust to the credit of Marion Whittaker, to the plaintiff.
Post-judgment interest run from October 21, 2015, in accordance with the Courts of Justice Act.
Costs of the action are payable by the defendants to the plaintiff fixed in the amount of $11,000, I accept that solicitor and client costs are recoverable under the mortgage but I reduce the amount claimed for the four appearances.
Mr. Santos shall forward to my attention (with a copy to the defendants) a draft judgment based upon these reasons.
Sproat, J.
DATE: October 20, 2015
COURT FILE NO.: CV-13-3305-SR
DATE: 20151020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOHN TAVARES V.
PATRICK ROY TAI-POW
AND MARION WHITTAKER
BEFORE: Sproat J.
COUNSEL: Orlando Santos, for the Plaintiff
Patrick Roy Tai-Pow, in person
Marion Whittaker, in person
ENDORSEMENT
Sproat J.
DATE: October 20, 2015